ORDER :- This petition under Article 226 of the Constitution arises out of a suit instituted by the plaintiff petitioner under section 176 of the U.P. Zamindari Abolition and Land Reforms Act.

2. The facts giving rise to this petition are that Mohammad Hanif and Abdul Majid were two co-bhumidhars of the land in suit in equal shares. Mohammad Hanif sold his half share to the defendants opposite parties. Mir Ahmad, Shaukat, Nizamuddin and Mohammad Ali. It appears that the other co-tenure-holder Abdul Majid executed an agreement to sell his half share of the property in favour of the plaintiff petitioner. Thereafter he did not execute the sale deed with the result that the plaintiff petitioner had to institute a suit for specific performance of the contract. That suit was finally decreed by the civil court and in pursuance of that decree on failure of Abdul Majid a sale deed was executed by the court on 25th September 1958. It is after the execution of this sale deed by the court that the present suit was instituted by Ram Das for partition of his half share.

3. This claim of the plaintiff petitioner was contested by the vendees of Mohammad Hanif who alleged that they had entered into possession over half share by virtue of a sale deed executed in their favour by Mohammad Hanif and that over the other half they entered into possession by virtue of an agreement to sell by Abdul Majid on 12th April 1955. It was alleged that Abdul Majid having accepted Rs. 100 as advance had put the vendees in possession over the other half belonging to Abdul Majid.

They further alleged that in accordance with the agreement the vendees had to pay a further amount of Rs. 300 to get the sale completed. According to the defence since the defendants had entered into possession over the disputed property after having advanced Rs. 100 they were entitled to the benefit of section 164 of the U.P. Zamindari Abolition and Land Reforms Act and an alternative case was also set up that in any case the defendants were in possession from 1361 F onwards and their possession being otherwise than in accordance with law they prescribed a title as a sirdar over the other half share of Abdul Majid.

4. On the pleadings of the parties relevant issues were framed and the first two revenue courts decreed the plaintiff's suit holding that by virtue of the sale executed by the court in favour of the plaintiff petitioner he became a co-sharer to the extent of half and was entitled to the division claimed. The plea of the defendants that they had entered into possession by virtue of an agreement on the advancement of Rs. 100 was negatived. The concurrent finding of the two first courts was that the defendants had entered into possession after the execution of the sale deed in respect of half of the property in their favour. The plea of limitation raised by the defendants was overruled on the ground that possession of one co-tenure-holder was possession of other, since ouster had not been proved the suit was well within time.

5. The defendants preferred an appeal before the Board of Revenue. The Board of Revenue set aside the two concurrent decisions and dismissed the suit. The Board, however, accepted the findings of the two courts below that the vendees of Mohammad Hanif, that is the contesting defendants entered into possession over the entire property belonging to Mohammad Hanif and Abdul Majid after the execution of the sale deed in their favour on 25th April 1955. The Board further accepted the concurrent findings of the two courts below that the vendees did not enter into possession by virtue of an agreement as alleged by the contesting defendants.

It, however, dismissed the suit of the plaintiff on the ground that the plaintiff had entered into possession in the year 1362 F. and vendees possession was adverse to the plaintiff and since the suit had been instituted more than three years after entering into possession of the vendees it was time barred. The Board further